Summary of NLRB Decisions for Week of August 3 - 7, 2020
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Verizon Wireless (02-CA-156761, et al.; 370 NLRB No. 5) New York, NY, August 3, 2020.
In a supplemental decision, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(1) by maintaining two work rules restricting nonbusiness use of the Employer’s IT systems. The Board applied the standard announced in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), that an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination. Because no party contended in response to the Board’s previously-issued Notice to Show Cause that the exception applied and no record evidence supported it, the Board held that a remand would serve no purpose and dismissed the allegations. The Board also denied a Motion for Reconsideration of the Board’s decision in 369 NLRB No. 108 (2020).
Charges filed by Communications Workers of America, AFL–CIO; Communications Workers of America, District 2-13, AFL–CIO, CLC; and Communications Workers of America, AFL–CIO, District 9. Administrative Law Judge Donna N. Dawson issued her decision on May 25, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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Painters & Allied Trades District Council 36 and Sign Display & Allied Crafts Local 510 (Freeman Exposition, Inc.) (20-CD-253060; 370 NLRB No. 6) San Francisco, CA, August 5, 2020.
In this Section 10(k) jurisdictional dispute proceeding, the Board awarded the work in dispute to employees represented by Painters & Allied Trades District Council 36 and Sign Display & Allied Crafts Local 510, based on the factors of employer preference and past practice and area and industry practice.
Charge filed by Freeman Exposition, Inc. Chairman Ring and Members Kaplan and Emanuel participated.
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Bemis Company, Inc. (18-CA-202617, et al.; 370 NLRB No. 7) Centerville, IA, August 7, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5), (3), and (1) by maintaining an unlawful off-duty access rule; discriminatorily discharging a prounion employee; dealing directly with employees; unilaterally changing numerous employment terms during first-contact bargaining by temporarily and permanently laying off employees, eliminating unit positions, and unilaterally altering their work schedules; failing to provide relevant requested information; failing to meet at reasonable times for bargaining; and engaging in surface bargaining. The Board also found, contrary to the judge, that the discriminatorily discharged employee engaged in protected concerted activity at employee meetings in addition to her union activity. The Board further adopted the judge’s dismissals of the allegations that the Respondent maintained an unlawful ban on “false” statements, unlawfully discharged a supervisor, and unilaterally changed its seniority policies for bidding on shifts and jobs. In addition, the Board reversed the judge to find that the Respondent’s maintenance of a social media rule did not violate Section 8(a)(1) and is a lawful Category 1(a) rule under Boeing. Finally, the Board reversed the judge and ordered the Respondent to reimburse the Union for bargaining expenses and losses it incurred as a result of the Respondent’s bad-faith bargaining.
Charges filed by an individual and Graphic Communications Conference of the International Brotherhood of Teamsters, Local 727-S. Administrative Law Judge Charles J. Muhl issued his decision on July 1, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
SunSteel, LLC (19-RC-261739) Sunnyside, WA, August 4, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Employer’s Request for Immediate Stay of Mail Ballot Election as moot. Petitioner—Iron Workers District Council of the Pacific Northwest, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
FDR Services Corp. of New York (29-RC-215193) Hempstead, NY, August 6, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. Petitioner—Laundry Distribution and Food Service Joint Board, Workers United. Chairman Ring and Members Kaplan and Emanuel participated.
PACE Southeast Michigan (07-RC-257046 and 07-RC-257047) Southfield, MI, August 7, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision, Order Severing Cases and Directions of Elections, as it raised no substantial issues warranting review. The Board also denied the Employer’s Request for Extraordinary Relief. Petitioner—Local 337, International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Hennes & Mauritz, LP d/b/a H&M (32-CA-250461 and 32-CA-256051) Hayward, San Francisco and Emeryville, CA, August 3, 2020. No exceptions having been filed to the June 22, 2020 decision of Administrative Law Judge Ariel L. Sotolongo’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charges filed by United For Respect.
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Appellate Court Decisions
Pacific Maritime Association and Long Beach Container Terminal LLC, Board No. 21-CA-197882 (reported at 367 NLRB No. 121) (D.C. Cir. decided August 4, 2020).
In a published opinion, the Court enforced the Board’s order issued against two respondent-employers, this multiemployer bargaining association that represents employers operating shipping, longshore, and cargo-handling industries at ports on the Pacific coast, and one of its member-employers, Long Beach Container Terminal. The Board (Members McFerran and Emanuel; Member Kaplan, dissenting) found that the Employers violated Section 8(a)(5) and (1) in two separate ways by imposing a new disciplinary procedure from an outside contract in order to discipline a bargaining-unit employee. Specifically, the Board found that, by taking that disciplinary action, the Employers committed both an unlawful midterm modification of the governing collective-bargaining agreement, and an unlawful unilateral change to bargaining-unit employees’ terms and conditions of employment.
On review, the Court (Chief Judge Srinivasan, and Circuit Judges Rogers and Rao; Circuit Judge Rao, dissenting in part) upheld the unfair labor practices based on “the plain text of the [collective-bargaining] agreement that covered the disciplined employee and the record before the Board.” On the midterm-modification finding, the Court recognized that, under Board law, an employer does not commit such a violation where it has a “sound arguable basis” for its interpretation of a contract and it is not motivated by animus or bad faith, citing Bath Iron Works Corp., 345 NLRB 499 (2005). The Court also recognized that no such “sound arguable basis” can exist where the employer’s interpretation runs “counter to the clear intention of the parties,” id., or where the contract “cannot be colorably interpreted to permit” the employer’s interpretation, quoting MV Transportation, Inc., 368 NLRB No. 66 (2019). Agreeing with the Board, the Court stated that the contract could not be “colorably interpreted” to permit the unilateral imposition of an alternative disciplinary procedure. The Court therefore concluded that the Employers failed to show that the Board erred in rejecting their attempt to come within the scope of the sound arguable basis exception for contract interpretation, and dispensed with the Employers’ further contentions, finding them contrary to the record evidence. On the Board’s unilateral-change finding, the Court held that the violation was supported by substantial evidence and rejected the Employers’ contract-coverage contention, concluding that the discipline imposed did not “fall within” the contract’s terms.
Writing separately, Judge Rao agreed that the Employers’ imposition of discipline was an unlawful unilateral change. However, dissenting in part, she would have vacated the midterm-modification violation. In her view, the “sound arguable basis” standard had been met, given “the relevant collective bargaining agreement is silent or at least ambiguous as to the discipline imposed in this case.”
The Court’s opinion is here.
AIM Aerospace Sumner, Inc., Board Case No. 19-CA-203455 (reported at 367 NLRB No. 148) (9th Cir. decided August 6, 2020).
In an unpublished memorandum, the Court enforced the Board’s order issued against this aerospace-industry manufacturer for an unfair labor practice committed at its facility in Sumner, Washington. In its decision, the Board (Chairman Ring and Members McFerran and Emanuel) concluded that the Employer violated Section 8(a)(3) and (1) by promoting an employee as a reward for circulating a decertification petition and to discourage membership in the Union representing its employees, the International Association of Machinists, District 751. In addition to dismissing several complaint allegations, the Board (Member McFerran, dissenting) found that the Employer lawfully relied on the decertification petition to withdraw recognition from the Union. In doing so, the Board determined that the petition was not tainted because the Employer had not engaged in misconduct directly related to it, and because, under the test of Master Slack Corp., 271 NLRB 78 (1984), the Union’s loss of support could not be attributed to the unlawful-promotion violation, the sole unfair labor practice found.
The Employer petitioned for review of the Board’s unlawful-promotion finding, and the Union petitioned for review of the Board’s dismissal of the withdrawal-of-recognition allegation. The Court upheld the unlawful-promotion finding, concluding that the Board’s Wright Line analysis was supported by substantial evidence. On the withdrawal-of-recognition allegation, the Court agreed with the Board that, although the Employer promoted the employee during her signature-gathering effort, there was no evidence that it directly encouraged the petition. Moreover, the Court assessed the Board’s application of the Master Slack factors, concluding that they weighed in favor of finding the petition untainted, particularly given there was only a single unlawful personnel action, in contrast to cases where taint had been found on the basis of “serious and flagrant” violations of the Act.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Khavkin Clinic, PLLC (28-CA-220023 and 28-CA-223014; JD(SF)-17-20) Las Vegas, NV. Administrative Law Judge John T. Giannopoulos issued his decision on August 6, 2020. Charges filed by an individual.
Longo En-Tech Puerto Rico, LLC (12-CA-248406 and 12-CA-252309; JD-31-20) San Juan, PR. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on August 7, 2020. Charges filed by United Steel Workers, Local 6871, AFL-CIO, CLC.
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